Sovereign Camp, W. O. W. v. Valentine

• Decision Date: 28 May 1934
• Docket Number: 31276
• Citation: 155 So. 192,170 Miss. 707
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. VALENTINE

155 So. 192

170 Miss. 707

SOVEREIGN CAMP, W. O. W., v. VALENTINE

No. 31276

Supreme Court of Mississippi

May 28, 1934

Division B

Suggestion Of Error Overruled September 11, 1934

1 INSURANCE.

As respects change of beneficiary, where constitution of fraternal insurance society provided that local financial secretary or officers should not, by acts, representations or waivers, have power to waive any provision of constitution and by-laws of association or to bind sovereign camp by such acts, neither local financial secretary nor any other officer of local camp had right to waive any provisions in benefit certificate or constitution and laws of society (Code 1930 section 5249).

2. INSURANCE.

Under fraternal insurance society's constitution requiring written request for change of beneficiary to be "properly witnessed," request for such change held required to show name of witness and fact that he signed as witness.

3. INSURANCE. Where request for change of beneficiary in fraternal benefit certificate was dictated by insured and signed by wife for him, but no one signed as witness, society's constitution requiring request to be "properly witnessed" held neither literally nor substantially complied with, though local financial secretary was allegedly present during dictation and, in his office, wrote, at bottom of request, a note to home office stating that insured wanted beneficiary changed.

There was neither literal nor substantial compliance with society's constitution, since note written and signed by local financial secretary at bottom of request contained no intimation that secretary was present and witnessed execution of the request, or that, of secretary's knowledge, insured wanted change in beneficiary made, and it appeared that, not only did local financial secretary not sign as witness, but would have refused thereafter to sign in that capacity, since he testified that he was not, in fact, present when the request was dictated to, and written and signed by, insured's wife.

4. INSURANCE.

Where, before insured's death, there was neither literal nor substantial compliance with fraternal insurance society's constitution and by-laws respecting change of beneficiary, nothing could be done after insured's death to effect a change.

5. INSURANCE.

Provision in fraternal insurance society's constitution requiring request for change of beneficiary to be properly witnessed held for protection of society as well as insured.

6. PLEADING.

In action on fraternal insurance certificate, where request for change of beneficiary, on its face, disclosed that signature of society's financial secretary at bottom of request was not in capacity of witness, and that, therefore, request was not properly witnessed, precluding recovery by plaintiff, defendant society was not required to deny signature under oath (Code 1930, section 1587).

APPEAL from circuit court of Clark county HON. J. D. FATHEREE, Judge.

Action by Mrs. Alice C. Valentine against the Sovereign Camp of Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed, and judgment here for appellant.

Geo. B. Neville, of Meridian, J. L. Adams, of Quitman, and Rainey T. Wells, of Omaha, Neb., for appellant.

No act or omission of any officer or agent will amount to a waiver unless he has the authority in that regard.

45 C. J. 214, note 67.

Officers of a local lodge charged only with ministerial duties could not by mere silence waive insured's noncompliance with a prescribed method for change of beneficiary, especially where a by-law limited authority to waive any requirement to the supreme master in writing.

Sections 5237 and 5249, Code of 1930; Dean v. Dean, 162 Wis. 303, 156 N.W. 135; Johnsonville v. W. O. W., 126 S.E. 332; Modern Woodmen v. Shattuck, 266 S.W. 621; Hall v. Allen, 75 Miss. 175.

In order to effect a change of beneficiary the laws of the society must be substantially complied with.

45 C. J. 196, par. 158 and page 203, par. 162, and page 69, par. 55; Flowers v. W. O. W., 90 S.W. 526.

The ignorance of officers of a local lodge as to their duties in making a change in the beneficiary, will not excuse the member from a compliance with the rules of the society.

45 C. J. 211; Grand Lodge v. Martin, 108 A. 355.

Defense of equitable estoppel is available in court of law.

Barnard v. German-American Seminary, 13 N.W. 811; 21 C. J. 1118, par. 121; Dickerson v. Colgrave, 25 L.Ed. 618; Kirk v. Hamilton, 26 L.Ed. 82; Hall v. Allen, 75 Miss. 175; 45 C. J. 211.

Chas. M. and Russell Wright, both of Meridian, for appellee.

If the regulations as to the mode of changing beneficiaries in a mutual benefit society certificate are ambiguous, that construction will be given to them which is most favorable to the rights of the member.

45 C. J. 205; Finch v. Grand Grove U. A. O. D., 60 Minn. 308, 62 N.W. 384; Brotherhood of Locomotive Firemen, etc., v. Ginther, 35 Wyo. 244, 248 P. 852, 252 P. 1026.

No particular form of writing is required under a provision in a certificate empowering the member to change the beneficiary by "writing filed with the association," his intent being clear.

Bowman v. Moore, 87 Cal. 306, 25 P. 409.

Whatever is intended as a signature is a valid signing, no matter how imperfect or unfinished or fantastic or illegible or even false the separate characters may be.

Sheehan v. Kearney, 21 So. 41, 57 Am. St. Rep. 39; In re Plates Estate, 148 Pa. 55, 23 A. 1038, 33 Am. St. Rep. 805.

An instrument is "signed" by the maker if he writes his own name thereto, or if his name is written in his presence and by his direction, either with or without the maker's mark.

Watkins v. McDonald et al., 41 So. 376; Cumrine v. Cumrine's Estate, 14 Ind.App. 641, 43 N.E. 322; Finnigan v. Lucy, 157 Mass. 439, 32 N.E. 656; Merritt v. Clason, 12 Johns, 102, 7 Am. Dec. 286; Herrick v. Morrill, 37 Minn. 250, 33 N.W. 850, 5 Am. St. Rep. 841; Reed v. City of Cedar Rapids, 138 Ta. 366, 116 N.W. 140; Degginger v. Martin, 48 Wash. 1, 92 P. 674; Walker v. Mobley, 105 S.W. 61; Kirkpatrick v. Board of Commissioners, 53 W.Va. 275, 44 S.E. 465; 2 Gr. Ev. 674; T. & S. Ferguson v. Lyle, 267 F. 817; Howard v. Hartford Fire Ins. Co., 77 Or. 341, 144 P. 450.

A member of a fraternal benefit society may authorize an agent to endorse the change on the certificate, and thus effect a valid substitution of beneficiary.

Bowman v. Moore, 87 Cal. 306, 25 P. 409; Schmidt v. Iowa Knights of Pythias, 82 Iowa 304, 47 N.W. 1032, 11 L. R. A. 205.

A notary's certificate is good as a "witnessing in writing" even though the certificate is superfluous. It is the intention which prevails.

Bolton v. Bolton, 107 Miss. 84; Murray v. Murphy, 38 Miss. 214; First National Bank of Hailey v. Glenn, 10 Idaho 224, 77 P. 623, 109 Am. St. Rep. 204.

Every act essential to the complete making and delivery of the instrument is included in the word "execute" so that an allegation that the bond was executed would be sufficient to cover every essential to the making and approval of the bond.

Fire Assn. v. Ruby, 60 Neb. 216, 82 N.W. 629.

Execution includes all acts necessary to make it a complete transaction.

Wells v. Lamb, 19 Neb. 355, 27 N.W. 229; Smith v. Williams, 38 Miss. 48; Sutherland v. Mills, 5 Exh. 715; Hayes v. Ammon, 85 N.Y.S. 607, 90 A.D. 604; Tucker v. Helgren, 102 Minn. 382, 113 N.W. 192; State v. Young, 23 Minn. 551; Schwab v. Rigby, 38 N.W. 101, 38 Minn. 395; 3 Words & Phrases, 2558; American Copying Co. v. Muleski, 122 S.W. 384, 138 Mo.App. 419; Schaefner v. Voss, 93 N.E. 235, 46 Ind. 551; Bowers v. Cotterell, 96 P. 936, 15. Idaho, 221; Embree v. Emerson, 74 N.E. 44, 37 Ind.App. 16; Lessler v. Delogues, 135 N.Y.S. 948, 150 A.D. 868; Aldrige v. Public Opinion Publishing Co., 27 S.D. 589, 132 N.W. 278; Appeal of Linton, 104 Pa. 228; Holmes Brothers v. McCall, 114 Miss. 57.

A failure to deny a signature under oath admits that it was made as alleged in the declaration and admits the authority to make it.

Ellis's Adm. v. Planters Bank, 7 How. 235; Clerk v. Childs, 4 P. 1058.

In accordance with the well settled general principles governing estoppels, no estoppel can arise where all the parties interested have equal knowledge of the facts.

Baldwin v. Richman, 9 N.J.Eq. 394.

And the same is true where the party setting up the estoppel is chargeable with notice of the fact.

Keeney v. Bank of Italy, 33 Cal. A. 515, 165 P. 735; Franklin Savings Bank v. International Trust Co., 215 Mass. 231, 102 N.E. 363; Garbutt v. Mayo, 57 S.E. 495, 13 L. R. A. (N. S.) 58; Landry v. Landry, 105 La. 362, 29 So. 900; Schlitz Brewing Co. v. Grimmon, 28. Nev. 235, 81 P. 43; 21 C. J. 1207, 1249 and 1251.

The forbidding of a local officer of a mutual benefit society to waive provisions of the constitution and by-laws of the society does not prevent an action within the scope of his authority, which misleads a member to his prejudice, from working an estoppel upon the society to declare a forfeiture.

W. O. W. v. Mrs. Nola Newsom, 142 Ark. 132, 219 S.W. 759, 14 A. L. R. 903.

The acts of an agent within the scope of his authority are binding upon his principal, even though he is forbidden to waive provisions of the by-laws.

Home Fire Ins. Co. v. Stancell, 94 Ark. 578, 127 S.W 966; Folb v. Fireman's Ins. Co., 133 N.C. 179, 45 S.E. 547; Tayloe v. Merchant's F. Ins. Co., 9 How. 390, 13 L.Ed. 187; Mallette v. British American Assur. Co., 91 Md. 471, 46 A. 1005; Farmers' & M. Ins. Co. v. Wiard, 59 Neb. 451, 81 N.W. 312; Tooker v. Security Trust Co., 165 N.Y. 608, 58 N.E. 1093; Robinson v. German Ins. Co., 51. Ark. 441, 4 L. R. A. 251, 11 S.W. 686; Jacoway v. German Ins. Co., 49 Ark. 320, 5 S.W. 339; Citizen's F. Ins. Co. v....